Tony & Wally Pty Ltd (Migration) - [2021] AATA 3489

Tony & Wally Pty Ltd (Migration) [2021] AATA 3489 (8 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Tony & Wally Pty Ltd
CASE NUMBER:  1837179
HOME AFFAIRS REFERENCE(S):          BCC2017/1776532
MEMBER:Karen McNamara
DATE:8 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 08 September 2021 at 1:05pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – tasks of position – combined hearing with nominee’s application – written submissions and oral evidence from director of applicant and nominee – comparison of tasks and ANZSCO description – roles of director and manager in franchise – director’s other businesses and nominee’s autonomy – employed for 4 years already – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
CASES
Cargo First Pty Ltd v MIBP [2015] FCCA 2091
Kartar Investments Pty Ltd v MICMSMA [2020] FCCA 5
Vishvam Pty Ltd as Trustee for the Vishvam Unit Trust v MICMSMA [2021] FCCA 758
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 December 2018 to reject the application by Tony & Wally Pty Ltd (the applicant) for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 18 May 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the application did not demonstrate that the tasks to be performed in the position correspond to the tasks of the nominated position of Retail Manager.
The applicant applied to the Tribunal on 18 December 2018 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 26 August 2021, the applicant represented by Mr Yin Zhao (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr He Li (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1902526). The related matters were heard concurrently in a combined hearing.
The Tribunal exercised its discretion to hold…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tony & Wally Pty Ltd (Migration)

Details

AGLC: Tony & Wally Pty Ltd (Migration) [2021] AATA 3489
Case: [2021] AATA 3489
Decision Date: 8 September 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (Cth) considered an application by Tony & Wally Pty Ltd for approval of a nomination for the position of Shop Manager under the Direct Entry stream. The dispute centred on whether the applicant met the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the nomination to be approved. The applicant operated an auto mechanic service under a franchise agreement and sought to nominate an employee for the Shop Manager position, classified under ANZSCO 142111.

The Tribunal was required to determine if the applicant satisfied all the criteria stipulated in regulation 5.19(4). Specifically, this involved assessing whether the application was in the approved form, identified a genuine need for a paid employee under the nominator's direct control, and whether the nominator was actively and lawfully operating a business. Further considerations included the terms and conditions of employment, the absence of adverse information known to Immigration, satisfactory compliance with workplace relations laws, and the specific requirements related to the tasks of the position and the genuine need for it, particularly in a regional context.

The Tribunal's reasoning focused on evaluating the evidence presented against each subregulation of 5.19(4). It found that the application met the formal requirements, including the correct form and certification. Crucially, the Tribunal accepted that there was a genuine need for the Shop Manager position, supported by evidence of the business's operational structure and the applicant's efforts to fill the role. The Tribunal also confirmed that the business and the position were located in regional Australia, satisfying the criteria under regulation 5.19(4)(h)(ii). Furthermore, the Tribunal was satisfied that there was no adverse information concerning the nominator and that the company had a satisfactory record of compliance with workplace relations laws.

Consequently, the Tribunal concluded that Tony & Wally Pty Ltd met all the necessary requirements for the approval of the nomination. The decision under review was set aside, and a substituted decision approving the nomination was made.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Background The applicant owns and operates an auto mechanic service trading as Ultra Tune Townsville City. The business operates under a franchise agreement and was registered on 11 September 2014. On 18 May 2017, the applicant lodged an application for an employer nomination approval for the position of Shop Manager under the occupation Retail Manager (General) (ANZSCO 142111) under the Regional Sponsored Migration Direct Entry stream. The position is located at Townsville, North Queensland. The nominated base rate salary is $47,000 and guaranteed earnings is $51,465 per annum. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The application is compliant: reg 5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met. In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mr Yin Zhao. In support of the need for the position, the applicant has provided evidence in the form of written statements to the Department dated 30 May 2017 and 10 October 2018 and oral evidence provided at the hearing on 26 August 2021. The applicant told the Tribunal, the position of Store Manager existed in the organisational structure prior to his purchase of the business. The need to employ a paid employee to work in the nominated position arose when the business sought to operate with two managers to cover extended opening times. A previous manager due to a personal problem, was not suitable to continue in the role and since purchasing the business the applicant has had three people undertaking the tasks and responsibilities of the position. The nominee was recruited to the position by a former manager (Wally) who relocated to Brisbane. The business now operates with one Store Manager, the position occupied by the nominee.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Background The applicant owns and operates an auto mechanic service trading as Ultra Tune Townsville City. The business operates under a franchise agreement and was registered on 11 September 2014. On 18 May 2017, the applicant lodged an application for an employer nomination approval for the position of Shop Manager under the occupation Retail Manager (General) (ANZSCO 142111) under the Regional Sponsored Migration Direct Entry stream. The position is located at Townsville, North Queensland. The nominated base rate salary is $47,000 and guaranteed earnings is $51,465 per annum. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The application is compliant: reg 5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met. In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mr Yin Zhao. In support of the need for the position, the applicant has provided evidence in the form of written statements to the Department dated 30 May 2017 and 10 October 2018 and oral evidence provided at the hearing on 26 August 2021. The applicant told the Tribunal, the position of Store Manager existed in the organisational structure prior to his purchase of the business. The need to employ a paid employee to work in the nominated position arose when the business sought to operate with two managers to cover extended opening times. A previous manager due to a personal problem, was not suitable to continue in the role and since purchasing the business the applicant has had three people undertaking the tasks and responsibilities of the position. The nominee was recruited to the position by a former manager (Wally) who relocated to Brisbane. The business now operates with one Store Manager, the position occupied by the nominee.

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.DECISION The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.Karen McNamaraMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval of nominated positions (employer nomination)…(2)The application must:(a)be made in accordance with approved form 1395…; and(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and(b)be accompanied by the fee mentioned in regulation 5.37.…Direct Entry nomination(4)The Minister must, in writing, approve a nomination if:(a)the application for approval:(i) is made in accordance with subregulation (2); and(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and(b)the nominator:(i) is actively and lawfully operating a business in Australia; and(ii) directly operates the business; and(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and(d)both of the following apply:(i) the employee will be employed on a full-time basis in the position for at least 2 years;(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:(i) are provided; or(ii) would be provided;to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and(f)either:(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and(h)either:(i) both of the following apply:(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;(B)either:(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or(ii) all of the following apply:(A)the position is located in regional Australia;(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;(E)the business operated by the nominator is located at that place;(F)a body that is:(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and(II)located in the same State or Territory as the location of the position;has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of r.5.19(4)(e) are met. No adverse information known to Immigration: reg 5.19(4)(f) Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the applicant or an associated person. Accordingly, the requirements of r.5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: reg 5.19(4)(g) Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws. Accordingly, the requirements of r.5.19(4)(g) are met.Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h) Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows; The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Townsville, Queensland, postcode 4810 which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met. The Tribunal next considered whether there is a genuine need for the applicant to employ a Shop Manager under the occupation of Retail Manager (General) (ANZSCO 142111) and for the tasks of that position.